Actors Unions Come Out In Support Of Separate Actors Copyright To Support Innocence Of Muslims Actress

from the that's-not-how-copyright-works dept

We've been covering the Garcia v. Google case for a while. What started out as a crazy case that pretty much everyone assumed was destined to go nowhere got weird in a hurry earlier this year when Judge Alex Kozinski upended decades of settled copyright law by deciding that an actor or actress might have a separate copyright interest in his or her performance in a film. The case involved Cindy Lee Garcia, an actress who was pretty clearly duped into performing in a video which became known as "Innocence of Muslims," a 13-minute film (which was called a trailer, though it's unclear if a full movie was ever actually planned or exists) that became quite controversial (and was, probably incorrectly, blamed for violence in the Middle East). Garcia was reasonably upset about her role in the film, and sought to have the entire thing pulled offline. She tried a few different ideas before settling on copyright, which made no sense at all, because actors and actresses are not considered to have a copyright in their own performance (remember, the copyright is in the "fixing" of the work).

When the original ruling came out, we noted it was a rare case where both Google and the MPAA might actually agree on a copyright issue, but it was not to be. The MPAA has completely sat out this ordeal, preferring to let others handle it. We've heard from multiple sources that the MPAA decided not to get involved because they didn't want to make any statements that could be seen as challenging WIPO's Beijing Treaty from a couple of years ago that tried to establish a new "audiovisual right" for actors, related to copyright.

Of course, while the MPAA is sitting it out, it appears that actors are not. Instead, they've actually decided to side with Garcia now that the 9th Circuit has finally decided to rehear the case, with a full (en banc) slate of judges. A bunch of amicus briefs have been filed (including one by us), in support of the fairly basic points that (1) no, actors don't have their own copyright in their performances and (2) blaming intermediaries is both against Congress' intentions and a very, very bad idea.

However, the single amicus brief on the other side, in support of Garcia comes from a variety of actors unions, led by the Screen Actors Guild and Actors Equity, claiming that Garcia's version is dead on. It's interesting to note that included in the brief is also the American Federation of Musicians, suggesting that a ruling on this matter could go well beyond just actors. Still, the actors' brief here pulls off an amusing balancing act of claiming that of course an actor can and should have a separate copyright interest, but that issue will almost never come up (other than, say, the present case).

The question at issue here is whether an actor’s performance in a motion picture can be an original work of authorship and, if so, whether the actor can hold a copyright, separate from the copyright in the whole motion picture. For the reasons described herein, the answer to both questions is yes, although the occasions on which this arises will be extraordinarily rare and completely outside the custom and practice of the audiovisual industry of the United States and many other countries.

The basic argument is that actors add a lot of their own creativity to a role. No one denies this. But they then take it further in arguing that originality automatically should lead to copyrightability. That's the nonsensical part. For example, the following paragraph makes no sense at all:

If an actor did not add sufficient originality to a performance, which actor a studio hired simply would not matter. The Academy Awards, Golden Globes, and Emmy acting categories and the Screen Actors Guild Awards would have no relevance. But it is indisputable that is not true; clearly actors are valued for their performance and the originality they bring to their respective roles. The actor imbues the lines with original expression that conveys emotion and brings the character to life.

No one denies that actors can add originality to a performance. But originality alone does not mean something is covered by copyright.

Separately, the actors' brief argues that Garcia's work was substantial enough to be covered by copyright, but again, the reasoning is suspect. They challenge the idea that her 5 seconds on screen is too short to be covered by copyright, because the filmmaker recorded a lot more. But that makes no sense, because the copyright claim is in the recording that Garcia wants taken down, not on everything he possibly recorded.

Google and its supporters argue, in part, that Garcia’s performance comprises approximately five (5) seconds of a larger motion picture and, therefore, is not worthy of protection. However, this ignores the fact that her entire performance was substantially longer, edited by Nakoula into what has been called a “trailer” for a larger motion picture. According to Garcia’s Complaint, her performance was spread over five (5) full and one partial script pages. First Amended Complaint, Exhibit A. A general rule of thumb provides that each script page represents approximately one (1) minute of screen time.... Additionally, Ms. Garcia worked for three and one-half days, indicative of more than five seconds of footage. Declaration of Cindy Lee Garcia.... Accordingly, while Nakoula may have used only a few seconds of Garcia’s performance, the full performance may not have been so de minimis as to be unprotected.

But, uh, the claim is only on the part that is shown online, because that's the basis for the takedown request. All of the rest of her performance is totally irrelevant here, because that's not what's claimed to be infringing. The only issue here was the clip on YouTube, which included merely 5 seconds of Garcia's time.

Finally, the actors insist that this issue will rarely come up in other circumstances because most "real" videos are made by sophisticated parties (i.e., MPAA studios) who contractually stamp out the possibility of something like this. Except, of course, more and more video works are not made in this manner. But the actors brush it off, claiming that all those other things, the piffle on YouTube and in reality TV doesn't matter because, tsk tsk, that stuff can't possibly be creative enough for copyright:

We appreciate that Google and some amici may be concerned that user generated content (“UGC”), documentaries, reality shows, game shows and news programs may not consistently adhere to well-established customs and practices of the audiovisual industry. However, programming that relies heavily on unscripted interviews and similar contributions will not be impacted by acknowledging copyrights in performers’ creative contributions because such contributions will typically lack the requisite “modicum” of creativity required to be considered an “original work of authorship.”

The actors also brush aside any concern that new takedown requests from actors will burden tech companies, because apparently, if Google can handle it, so can the rest of the tech industry.

On the technology side, Google responds to tens of millions of copyright takedown requests on a monthly basis and has deployed a sophisticated, automated system to detect and take down infringing material from YouTube. While the number of takedown requests directed to its YouTube service is not publicly available, Google does report figures related to its other services. For example, in the past 30 days ending December 5, 2014, Google’s search engine received and responded to nearly 36 million take-down notices; the company has received and responded to as many as 11 million take-down requests in one week for its search engine.

Yeah, that's Google. Think of the startups that can't process that kind of takedown request volume. The actors do not think about that at all. Hopefully, the court sees through these weak arguments next week when it hears the case.

Reader Comments

It's been said before, bad facts create bad law. I hate to say it, but I hope the studios fight strongly against this. To think that an actor should have a separate copyright in his or her performance is disturbing.

Cindy Lee Garcia's appearance is work for hire period. She cannot hold a copyright on a work-for-hire role just like Joe Shuster (or his heirs) cannot own the copyright to Superman which was ruled a work-for-hire. You can't have this bith ways. If Cindy wins, then Joe Shuster's heirs own Superman. Period. These are not mutually exclusive.

Re:

You're over-thinking this. Right now there is no copyright protection on an actor's performance. There is a copyright on the recording of the performance, but the performance itself has no protection in the US.

So there is no point talking about whether it was a work for hire, as that erroneously assumes there is copyright protection.

Re: Re:

here is the point which *is* applicable for work-for-hire scenario: JUST LIKE a -say- graphic artist is hired to do a logo/whatever for a korporation, they bring THEIR own style, interpretation, variation, and individual expression to the graphic(s) they produce for the korporation, too, JUST LIKE ACTORS...

so-o-o-o, does that mean these DEFINITELY work-for-hire graphics are under the hiree's copyright BECAUSE they applied their originality/style to the korporation's graphic task ? ? ?it would seem obviously 'no', but i guess actors are speshul...

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Work for hire ain't what you think.

Work for hire generally means an *employee*. If you hire an independent designer, say, bob of Bob's Logos the copyright is with ***Bob***, brcause he's the creator, and he is *self employed*, so the employer is himself, not the client. If you want the copyright, you'll need a written copyright transfer.

People misunderstand what "work for hire" means in copyright cases because they think the words speak for themselves, but they don't. The law is more complicated than that.

Plumbers!

I want a separate plumbers' copyright, every time someone new comes to a house and uses a tap or the loo they should make a payment to the plumber that installed it. Further, you should not be allowed to use the facilities the plumber installed for anything new without paying. Cooking a new dish? The cooker installer should get a royalty, reading a new book after sunset? That's money for the electrician, before that, pay the glazier!

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It's even bigger than that.

Imagine an actor who is underpaid thanks to Hollywood Math filing a DMCA takedown of the movie they acted in. Not just directed at the studio, but the theaters.

Imagine every single person in the background of a stock photo or when a camera pans across a crowd asserting partial copyright ownership of the resulting news report, with the ability to file a DMCA takedown if not monetarily appeased.

Imagine a major Hollywood movie being unable to be sent to the theaters because an actor disagreed with the director.

Wow, that's some condescendingcondescending stuff...

So, an actor performing someone one else's words, following the instructions of a director, that's cteatitvity sufficient to be copyrightable by the actor. And a half hour interview with an artist, author or newsmaker, featuring their unscripted, spontaneous thoughts, that's not creative enough for copyright? Wow, that some really awsome legal thinking... :-p

"If an actor did not add sufficient originality to a performance, which actor a studio hired simply would not matter."

But it appears that the opposite is true. In other words, if an actor did add sufficient originally to a performance, it would matter which actor a studio hired.

My point is, does the actor hold a copyright on that sufficient originality? In other words, if an actor is replaced in a role, can that first actor collect a licensing fee from the replacement actor based upon his "originality"? Would each new actor be forced to act differently than the previous actors to avoid infringing the first actor's sufficient originality?

Let's take it further, could Bruce Willis copyright his "cool under pressure/everyman" persona? Does Jason Statham violate Willis' copyright?

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Could they sue over an impersonation? Sure, people can sue for anything in this country.But how much damage would their own career take? Every time Kevin Pollack does a Shatner impression, more people know about Shatner, which is good for the both of them.

But the bigger issue is why Garcia's rights (of spending 5 seconds in the movie) are more important than the cost and effort all the other people put into making the movie.If she wins, does this mean any actor can shut down distribution of a multi-million dollar movie because of "copyright"?

I hope they get an actors copyright...

...and a muscians copyright while they are at it. The more people that hold copyright, the more confusing it gets, the more lawsuits there are; maybe something will then get done to fix copyright. Or am I dreaming?

Re: As a Software Developer....

Yes, I would agree with that. I could use an if statement or case statement; it is my creativity which I choose. Same with for and while loops. My comments are my own, at least that should be copyrighted.

Re: Re: As a Software Developer....

Re: As a Software Developer....

"I would then have a copyright stake in any code that I write."

According to existing copyright law, you do have such a copyright stake already unless it's work-for-hire. This isn't new. If you're developing software for a company, take a good look at your employment contract. I bet you'll find there's a declaration in there that your work is a work-for-hire and therefore any copyright interest belongs to your employer.

and this will add to the stupidity that there is nothing more important than the entertainment industries and the members thereof! absolutely ludicrous!! but given how governments and courts have always gone on the side of those above, i'm pretty sure this case will as well! that will stir things up! wont be long before the entertainment industries take control of the net and this is another step towards that aim, even though it isn't deserved in the slightest!!

Are we really surprised though? Of course an actor's union is going to claim that actors should have greater power than they currently do.

Also, I seriously doubt that the actor's unions give one whit about this particular case. However, if they can use it to get a court to declare that actors have a copyright interest in their performance, you had better believe that (despite what they state) it will eventually be used against a studio when/if it ever doesn't properly kill that interest by contract... and I'll bet that the unions are hoping for exactly those occasions. Ka-ching! $$$

Originality.....

"... add sufficient originality to a performance..."How to measure 'originality'.. Would each any every person who appears in a movie have their own copyright? all the way down to the extras who are part of a crowd, army, etc?

Copyright it let the Actors and Studios fight it out , I honestly think actors create characters , I hate copyright btw to be clear , but the film has nothing if it doesn't have decent acting and believable characters , watch enough B rated films and you'll get it , studios pay them for their acting skills not the characters/personas they create .

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"I honestly think actors create characters"

Nobody is saying otherwise, although I would argue that the character creation is a collaborative activity: the actors, the directors, and the writers all have a hand in the nature of the character and how it's portrayed.

But that's not the sole criteria for something being copyrightable. Traditionally (and oversimplified), it's the person who actually records the creation who holds the copyright. No copyright applies until the performance is recorded in a fixed medium. The live, unrecorded performance of an actor on stage would not qualify for copyright regardless of how this case pans out.

Personally, I think that actors should have copyrights in their performances simply because it might actually stop studios releasing crappy remakes for 170 years after they're made due to the objections of someone who appeared in several scenes as a baby. };)

With the MPAA sitting this one out, even though they sided with Google, it would be fucking hilarious if the courts decided to grant actors and actresses limited copyrights to their performances in music videos, movies and television shows. Every major movie and television studio would be impacted.

I shall skip past my contempt for the many creators' unions getting together to side with the censor instead of the free expression. It better be obvious to everybody here which side you ought to take between religious murderers and movie makers.

And I shall skip past the unions' paranoia and conspiratorial attitudes towards Google, which is surely driving this babble.

What we have here is a foregone conclusion. The more the unions protest about separation of copyright principles from defamation principles, the more they put the nail in the coffin over the stupid argument that copyright and defamation should be one in the same thing.

I say let them dig this trap for themselves. The attempt to square this circle and insist that there is no other way to defame an artist without infringing on a copyright will surely lead to upending the law and forcing lawyers to separate the two concepts whether they like it or not.

Maybe then we will finally get the whining about blasphemy over creative works to stop. Maybe Aerosmith will stop bitching about the "degrading" nature of YouTube remixes. Maybe the Beastie Boys will realise there are other routes to stopping the implication that they are involved with a corporation they don't agree with that doesn't rely on copyright. Maybe then there will be "I will not be defamed!" comments on Facebook when the company uses pictures for advertising purposes instead of some useless copyright disclaimers. Maybe then people will get some fucking common sense.

Then again, perhaps not. Fools like these always want to have it both ways.

The root fallacy here is that defamation should have nothing to do with copyright and should be handled in a different legal sphere. It is NO argument in support of copyright to say that without copyright, defamation of an artist would go unpunished.

The case involved Cindy Lee Garcia, an actress who was pretty clearly duped into performing in a video which became known as "Innocence of Muslims," a 13-minute film (which was called a trailer, though it's unclear if a full movie was ever actually planned or exists) that became quite controversial (and was, probably incorrectly, blamed for violence in the Middle East).

According to the title, here is the full 74 minute movie, as downloaded off YouTube before it was deleted.

Indeed you might. The problem is, ignorant morons like yourselves tend to ignore the fact that's a *huge* number of people who object to this crap who have nothing to do with Google. But, just ignore whatever's inconvenient to your preferred reality, huh? Life is so much easier if you pretend that Google is the only player out there.

"user generated content (“UGC”)...programming that relies heavily on unscripted interviews and similar contributions"

What about the user generated content and the huge number of other professional and amateur short films, features and other works available online that don't rely on unscripted and similar contributions?

Again, just ignore whatever doesn't fit your reality. Then whine about Google when the artists who wouldn't otherwise be able to fight against the studios manage to find an ally with deep enough pockets to help them. Sadly typical.